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Nuness v. Simon and Schuster, Inc.

United States District Court, D. New Jersey

June 29, 2018

TYSHANNA NUNESS, Plaintiff,
v.
SIMON AND SCHUSTER, INC., et al., Defendants.

          Lance D. Brown, Esq., Toni L. Telles, Esq. Attorneys for Plaintiff

          Paul C. Evans, Esq. Andrew Ashworth Napier, Esq. Attorneys for Defendants

          OPINION

          JEROME B. SIMANDLE U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Tyshanna Nuness (“Plaintiff”), filed this law suit against her previous employer, Simon & Schuster, Inc. (“Defendant”), wholly owned by CBS Corporation (collectively “Defendants”), as well as John Does 1-100 and ABC Corps 1-100, alleging racial harassment, constructive discharge, and retaliatory discharge under the New Jersey Law Against Discrimination (“NJLAD”). [Docket Item 20.]

         Before the Court is Defendant's Motion for Summary Judgment on all claims pursuant to Fed.R.Civ.P. 56. [Docket Item 25.] Plaintiff opposes the motion for summary judgment [Docket Item 28].

         The principal issues presented by Defendant's motion are whether Plaintiff can establish a prima facie case for racial harassment by (1 presenting evidence of severe or pervasive conduct; and, (2) presenting evidence that Defendants are vicariously liable for the alleged harassment. Additionally, before the Court is also the question of whether Plaintiff has proffered evidence to create a genuine dispute of material fact that a reasonable jury could find meets the high burden of showing constructive discharge; and if Plaintiff experienced an adverse employment action, whether there is the requisite causal connection to racial harassment in order to establish retaliation.

         For the reasons set forth below Defendant's Motion for Summary Judgment will be denied.

         II. BACKGROUND

         A. Factual Background

         1. Plaintiff's Employment and Defendant's Non-Discrimination and Anti-Harassment Policy

         Plaintiff is an African American female who was previously employed as a Line Picker with Defendant, beginning in December 2014. (Def. SMF ¶ 1-2.) On December 29, 2014, Plaintiff began working the night shift, Sunday to Thursday from 11:00 p.m. to 7:00 a.m. (Pl. Dep. at 27:10-21.) In this role, Plaintiff “filled cartons with books to fulfill customer orders, ” and her immediate supervisor was Marcellus Wilson (“Wilson”). (Def. SMF ¶ 2; Pl. Dep. at 31:3-10.)

         While employed with Defendants, Christopher Hankins (“Hankins”), a Caucasian male, was one of Plaintiff's co-workers and fellow Line Picker within the same department as Plaintiff. (Def. SMF ¶ 2; Pl. Dep. at 41:12-14.) Hankins was in his first year of employment with Defendant. (Pl. SMF ¶ 37.) He attended the same meetings as Plaintiff, and they performed the same jobs. (Pl. Dep. at 41:20-23.) At times, Plaintiff and Hankins were on the same two to three-person team while working. (Id. at 41:24-42:2.)

         According to Plaintiff, one week before Hankins made a racial comment to her, she heard Hankins making inappropriate sexual jokes and was aware of other inappropriate comments Hankins made. But prior to March 12, 2015, Hankins did not make inappropriate comments to Plaintiff, nor did Plaintiff complain of specific comments. (Pl. SMF ¶ 51-42; Pl. Dep. 74 21-22.) Plaintiff did, however, complain to Wilson about Hankins “a number of times[, ]” stating he was “erratic, ” and further questioned his employment with Defendants. (Def. SMF ¶ 7; Pl. SMF ¶ 53.) Plaintiff stated that she heard Hankins discussing how Defendants “won't fire [him]” and that he can say what he wants because “they needed his father's signature.” (Pl. Dep. at 75:15-24-76:8.) Defendant alleges, and Plaintiff does not dispute, that Defendant's Human Resources Department did not receive any formal complaints about Hankins regarding inappropriate comments or conduct prior to Plaintiff's complaint on March 12, 2015. (Def. SMF ¶ 6; Tuccillo Dep. at 45:18-46:3.) Plaintiff does argue that “plenty of reports concerning [Hankins's] bothersome conduct [were] made to a supervisor (although these reports were not turned over).” [Docket Item 28-2 at 16.]

         Pursuant to Defendants' policies, problems with an employee during his or her first year of employment with Defendant usually led to termination. (Tuccillo Dep. at 122:4-15; Pl. Ex. H.) Specifically, “violations of attendance and performance” are “situations that would warrant somebody within their first year to be terminated without written warning, ”; notwithstanding this fact, Defendant's HR representative testified that situations of racial discrimination and harassment warrant warnings rather than termination without written warning. (Tuccillo Dep. at 122:22-123:23; Pl. SMF ¶ 61; Pl. Ex. H.)

         Despite this distinction, Defendants argue that they have and maintain a “zero tolerance policy towards racial discrimination.” (Pl. SMF ¶ 54.) The “Non-discrimination and Anti-Harassment Policy (“the Policy”) “‘strictly prohibits harassment' on the basis of any protected characteristic” and prohibits retaliation. (Def. Ex. C.) The policy specifically provides that:

CBS is committed to a work environment in which all individuals are treated with respect and dignity. Each individual has the right to work in a professional atmosphere that promotes equal employment opportunities and prohibits discriminatory practices, including harassment. Therefore, CBS expects that all relationships among persons in the workplace will be business-like and free of bias, prejudice and harassment.

(Def. Ex. C at 1.) “The policy outlines the procedure for reporting an incident of harassment, discrimination or retaliation.” (Def. SMF ¶ 30.) The policy also explains who employees should report such conduct to, which includes but is not limited to immediate supervisors and Human Resources (“HR”), before the conduct “becomes severe or pervasive” (Def. Ex. C at 2.) According to the policy, after a complaint is made, a subsequent investigation will ensue, which includes “speaking to the alleged harasser and complainant, along with any witnesses.” (Def. Ex. C at 3.) After the investigation, HR is to notify the complainant that the investigation concluded, and what action was taken as a result. Def SMF ¶ 32.) Employees who engage in harassment are disciplined and may be terminated. (Def. SMF ¶ 28.)

         Defendant informs all its employees about the policy and they must sign off on it. (Def. SMF ¶ 34.) Accordingly, Plaintiff was aware of and received a copy of this policy, and further “signed acknowledgement.” (Def. SMF ¶ 35-36.)

         2. The Racial Harassment Incident

         At the end of Plaintiff's shift, on March 12, 2015, as Plaintiff, her coworker Tanisha Williams (“Williams”), and Hankins were getting ready to go home and during a break time, Plaintiff and Williams were engaged in conversation when Hankins approached the two and interrupted their conversation. (Pl. Dep. at 44:1-44:12; Tuccillo Dep. at 62:4-10.) Plaintiff testified that Hankins interrupted saying something in the nature of, “You're cute”; Plaintiff did not respond. (Pl. Dep. at 44:13-44:17.) Hankins repeated himself but added an additional thought: “[O]h, you're a cute little nigglet.” Id. at 44:19-44:20. Plaintiff asked Hankins, “What is that supposed to mean?” and Hankins responded, “You know how pigs are cute, like a pig nigger.” Id. at 44:21-45:1. Tanisha was present for this conversation (Pl. SMF ¶ 49; Tuccillo Dep. at 59:24-53:16), and subsequently confirmed that Hankins called Plaintiff a “niglet.” (Pl. Ex. L. at 2.)

         Plaintiff did not say anything else to Hankins. She walked away and went home. (Pl. Dep. at 45:2-45:5.) Plaintiff and Hankins may have been sitting only “a table or two apart” when the comment was made. (Tuccillo Dep. at 62:4-10.)

         After Plaintiff went home, she “couldn't go to sleep” and called Wilson, her supervisor, that same morning to report what Hankins had said. (Pl. Dep. 45:8-45:14.) Wilson told Plaintiff “that it was above his pay grade and [she] needed to take it to HR.” Id. at 45:15-45:16. Plaintiff stayed up, waiting for someone from HR to be in the office, and called HR that same morning. Id. at 47:18-47:23; Def. SMF ¶ 9; Pl. SMF ¶ 56. Plaintiff spoke with Jessica Rivera in HR and specifically notified her that this comment was racial and offensive to her. (Pl. Ex. L at 1.) She also reported Williams as a witness to the incident, and HR notified Plaintiff it would be commencing an investigation into the matter. Id.

         3. Defendant's Investigation of the Racial Comment

         Defendant' Director of HR, Jackie Tuccillo (“Tuccillo”), approved Plaintiff's absence from work for the two days immediately following Hankins comment while it investigated the incident. (Def. SMF ¶ 10.) Rivera advised Plaintiff of this when Plaintiff first notified HR on March 11, saying that “while they were looking into what happened, that [Plaintiff] didn't have to come in and they would let [her] know what was going on.” (Pl. Dep. at 50:7-50:10.) Plaintiff was not paid for those two days. Id. at 50:14-50:20.

         As part of the investigation, HR contacted Williams to question her about the incident she witnessed. (Pl. Ex. L at 1.) Without prompting, Williams indicated that she knew what HR was referring to, stating, “[Y]es, Chris!” Id. Williams explained that Hankins was initially saying “some sexual remark or joke to” Plaintiff when he said he had a “funny joke for ya'll.” Id. at 2. According to Williams, Hankins proceeded by stating “you know how you see a pig and you say pig[l]et?! I can't say the ‘N' word so I'm gonna say little niglet.” (Id. at 2.) Williams stated that she heard Plaintiff say, “What, ” but nothing after that. Id. Williams additionally provided further information about Hankins' behavior with other employees, where she heard him speak “inappropriately on several occasions.” Id. According to Tanisha, Hankins was “constantly referring to females as bitches and [wa]s always using foul and inappropriate language.” Id.

         During this investigation, HR also contacted Hankins personally. Id. When HR informed him that the call was in reference to a formal complaint mentioning him, his immediate understanding was that it regarded a sexual joke about a sex position, that he repeated in the presence of two female employees (not Plaintiff and Williams). Id. HR explained that such a comment was “inappropriate . . . and not tolerated, ” and proceeded to ask if he made any racial comments. Id. Hankins continuously denied the claim that “he ever ma[de] any racial comment or joke, ” but described medications he took and how he sometimes could not remember things. Id. Hankins was notified he would be suspended pending investigation and was instructed that he not return to work, until notified. Id. Rivera ultimately recommended that Hankins be suspended for “3-5 days” as well as that he “be placed on a final warning.” Id. at 3.

         Defendant suspended Hankins from work for three days and issued a “final warning that further inappropriate conduct would lead to discipline, including potential termination.” (Def. SMF ¶ 11.) Defendant reiterated its policy to Hankins, making clear that using the term “nigglet” is a violation of such. (Def. SMF ¶ 11; Tuccillo Dep. 12:4-7; Pl. Ex. I.)

         4. Plaintiff's Return to Work

         When Plaintiff had not heard back from HR, she called on March 15 and was informed that Hankins had admitted to making the remark and that they “took care of everything.” Id. at 50:1-24-51:4. Plaintiff understood this to mean Hankins had been terminated. Id. at 51.

         Plaintiff returned to work on the evening of March 15, 2015, and no inappropriate conduct or comments occurred on that day as Hankins was still suspended. (Def. SMF ¶ 14-15.) Wilson informed Plaintiff Hankins was still employed with Defendant. Plaintiff “felt it was unfair” but Wilson explained she would have to talk to HR about that. (Pl. Dep. at 55:11-23.) According to Plaintiff, when she contacted HR the next day, Tuccillo “basically said due to their policies that she did what she had to do.” Id. at 56:13-56:19. Plaintiff characterized Tuccillo's tone as “very rude.” Id. at 57:21.

         In either the same conversation or a different conversation with Tuccillo shortly thereafter, Plaintiff reiterated to Tuccillo (as she had previously stated to Tuccillo, id. at 56:16-17, and to Rivera, id. at 50:6-7) that she was uncomfortable, and asked if either she or Hankins could be placed on a different shift, but Tuccillo simply kept repeating that “she reached out to someone and they told her that they did what they had to do.” Id. at 59:3-9.

         Defendants state that it had “no positions available for Plaintiff or Hankins to move to, ” while Plaintiff maintains that “HR never checked to see if anyone could change shifts.” (Def. SMF ¶ 13; Pl. Resp. SMF ¶ 13.) Tuccillo testified that she did not contact other employees asking if they were willing to change shifts. (Tuccillo Dep. at 54:9-13.)

         According to Plaintiff, Defendant wanted to have her “work side by side with [Hankins.]” (Pl. Resp. SMF ¶ 18; Pl. Dep. at 65:1-9.) But Defendant states Tuccillo informed Plaintiff she “would not be working in the same area as Hankins.” (Def. SMF ¶ 18.) Plaintiff disputes this, citing HR notes that reflect HR recording Plaintiff as having said “that she doesn't think its right and he's still in the same place as her. Even if he doesn't talk to her any more, she doesn't think that's the right thing for us to do. I told her that was our decision and that we needed her to return to work or resign.” [Docket Item 28-2 at 20, citing Pl. Ex. L). However, under Defendant's proposed plan, the separation of Plaintiff and Hankins would not have extended to the common breakroom which they would share, nor the shared outside areas. (Tuccillo Dep. at 50:20-51:4.)

         Plaintiff, due to her discomfort with Hankins, called out of work after March 15, as she could no longer work with Hankins. (Def. SMF ¶ 20; Pl. Resp. SMF ¶ 20; Pl. Dep. at 59:3-14.) Defendant informed Plaintiff she needed to come to work. (Def. SMF ¶ 21.) Subsequently, on March 17, 2015, “Plaintiff informed Tuccillo that she would be contacting an attorney.” (Def. SMF ¶ 22.)

         Tuccillo continued to contact Plaintiff with regard to returning to work, informing Plaintiff that if she failed to do so it would be considered a voluntary resignation. (Def. SMF ¶ 24.) Plaintiff alleges that she was unable to return because of “the hostile work environment” and told Defendant she “would not resign.” (Pl. Resp. SMF ¶ 25; Pl. Ex. L.) On March 20, 2015, Plaintiff emailed Tuccillo “as a last alternative” expressing that she did not want to lose her job but felt that she should not “have to come to work in these conditions.” (Pl. Ex. O.) She claimed that “I hope I can return to work soon without being forced to work side by side with someone who has a problem with me because of the color of my skin.” Plaintiff did not return to work after her initial day back on March 15, 2015. (Pl. Dep. at 63:9-14.) At no time after the initial incident did Plaintiff and Hankins work together again. Defendant informed Plaintiff that she would be terminated if she did not return to work and Plaintiff ultimately was so terminated. (Def. SMF ¶ 25.)

         Following Plaintiff's termination, on April 23, 2015, one of Defendant's employees, Anthony Debiase, sent an email to Tuccillo regarding Hankins. (Pl. Ex. J.) The email described Hankins's inappropriate behavior towards one of the security guards on two occasions. Id. Additionally, the email stated Hankins was “still finding ways to antagonize and create animosity, ” reiterating the disruption Hankins's behavior causes in the warehouse. Id. Ultimately, Defendants fired Hankins effective April 27, 2015. [Tuccillo Dep. at 66:3-8.] Plaintiff contends that this continued harassing behavior by Hankins shows that Defendant's proposed remedial plan (and its suspension of Hankins) was not reasonably calculated to adequately address Plaintiff's complaint. [Docket Item 28-2 at 21.]

         In early May 2015, Plaintiff's position remained open and Defendants offered the position back to her. (Pl. Dep. at 81:2-22.) Plaintiff turned down the offer because she “had another job and . . . [because of] what I just went through and the way I was treated there.” Id. Plaintiff testified that her new position (working at Domino's for $3 an hour, with the possibility of receiving tips ranging from $25 to $100 for an eight- to ten-hour shift) was preferable to returning to her old position, notwithstanding that she hadn't actually begun working at Domino's yet. Id. at 83:17-84:8. Plaintiff testified that, at the time Defendant offered Plaintiff her old position again, she does not remember “it being discussed if [Hankins] was [still] working there or not.” Id. at 86:1-8.[1] It is undisputed that Hankins was no longer employed when Defendant offered Plaintiff re-employment.

         B. Procedural Background

         Plaintiff initially filed suit against Defendants in the Superior Court of New Jersey, Burlington County, Law Division on January 29, 2016, and Defendants removed the action to this Court pursuant to 28 U.S.C. § 1441 et seq. on April 27, 2016. [Docket Item 1.] Plaintiff filed an Amended Complaint. [Docket Item 5.] Defendants then filed a motion to dismiss all claims pursuant to Fed.R.Civ.P. 12(b)(6). [Docket Item 8.] That motion was denied in part and granted in part without prejudice and an accompanying order was issued by this Court. [Docket Items 16, 17.] Plaintiff subsequently filed a Second Amended Complaint [Docket Item 20] and Defendants filed an Answer [Docket Item 21]. In due course, after ...


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